No neutrality on Net

Entertainment & Technology Summit 2012

It’s been nearly two years since the FCC passed net neutrality rules, which would seem to have put an end to an exceedingly wonkish debate over the extent to which Internet providers could control traffic as its reaches the consumer.

While the final rules may have left consumer groups wanting more and corporate interests wanting less, the sentiment of many was that, after years of debate, it was time to move on.

But it’s not over. Republicans placed the FCC’s open Internet rules in the crosshairs of their party platform, and, more importantly, the D.C. appellate court is weighing a legal challenge from one of the biggest mobile providers, Verizon, that could relitigate net neutrality all over again.

The FCC’s rules prohibit fixed Internet providers from blocking lawful content, or from “unreasonably” discriminating in their transmission of lawful traffic to the consumer. Although the rules also prohibit mobile broadband providers from blocking lawful sites, or even competing voice and video services, they leave some flexibility for wireless providers, as the anti-discrimination rules do not apply to them.

The rules were imposed due to fears that broadband would evolve into a tiered system, in which Internet providers could favor some types of content over another, by giving speedier delivery to some types of content or slower delivery to others.

Verizon is challenging the FCC’s authority to even impose the rules, contending that it adopted the rules “without any evidence of a systemic problem in a need of a solution, candidly recognizing that the Internet was already ‘open’ and working well for consumers.”

It claims that the FCC lacks statutory authority to impose the regulations, and even that they violate their constitutional rights, including the First Amendment.

The new rules impose “dramatic new restrictions on broadband Internet access service providers,” the company said in its brief, adding that they impose “classic common-carrier obligations on broadband providers, requiring them to carry the traffic of all ‘edge providers’ and even wading into price controls by setting a uniform, nondiscriminatory price of zero for such carriage.”

The FCC, however, defends its action as one made on sound legal footing.

The agency said that its authority comes from a number of places, including its “congressionally assigned role in communications, the history of oversight of computer-based services, and even its discretion to classify broadband as a telecommunications service, although it stopped sort of taking the latter step.

It also challenged that net neutrality is a “solution in search of a problem,” noting “multiple instances” of Internet providers trying to interfere with customers’ ability to use Internet telephone services and file-sharing. It also cited “powerful economic incentives” for broadband providers to discriminate, claiming “that record itself justifies Commission action, but the law does not demand the Commission to wait until harm has already occurred.”

An irony is that in 2010, when the FCC was struggling to come up with a compromise, Verizon and Google floated the idea of a plan that looks a lot like the one that the agency adopted, but it was meant to pass Congress and other stakeholders, not the FCC acting on its own.

A decision in Verizon’s case may not come until early next year, and there’s a chance that the showdown will end up like so many other regulatory tangles: In the hands of the Supreme Court.

Entertainment & Technology Summit 2012
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